Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Sir George Lockhart
v.
James Stewart

Date: 8 July 1670

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It was contraverted betwixt Sir George Lockhart, and James Stewart, if a messenger, as judge to the formality and leading of apprising, can adjourn or continue the diet of the apprising from one day to another. Sir George, Sir Robert Sinclair, and many others, thought he had no such power, since the diet and citation of the defender to see the comprising led on such a day was peremptory, not bearing “with continuation of days,” and otherways comprisings (which of themselves are most solemn and public acts) should be all carried on clandestinely: yet thought he might prorogate upon urgent necessity, or on just and lawful causes, or where there were impediments why he could not keep that day; yea, Sir Robert called it a novelty or heresy in law, to say he could continue; and thought any comprising that bore any such adjournment was ipso facto null. Yet James Stewart, and Mr. George Norvell, had seen such comprisings, and alleged that any ordinary jurisdiction in Scotland might prorogate, but such was the messengers, they being appointed by the acts of Parliament judges to comprisings; and such adjournments are ever done periculo petentis, and if any be lesed there by, they have a remedy, viz. to complain to the Lords. Vide infra Num. 216. [12 July 1671, M'Pherson against Murray.]

Advocates' MS. No. 67, folio 80.